9643 | Ga. Ct. App. | Feb 21, 1919
Lead Opinion
This was a suit against a master' for personal injuries sustained by his servant, and was based upon the alleged negligence of the master in not providing a safe place of work for the servant. In the plaintiff’s petition the only' reason given why the place was not safe was that it contained a defective machine. The undisputed evidence clearly showed, that the defect in the machine was a very slight one and not dangerous in itself, nor apparently dangerous in conjunction with any other instrumentality in the place; that the defect did not directly cause the plaintiff’s injury, but that it was only the indirect and remote cause thereof; and that the master could not, by the exercise of ordinary care, have reasonably anticipated that such an injury, or that any injury at all, would or might result from the defect. The master is not an insurer. He is not required to provide an absolutely safe place for his servants to work in, but only a reasonably safe place.
The foregoing ruling being controlling in the case, it is unnecessary to consider the special grounds of the motion for a new trial.
Judgment reversed.
Rehearing
ON MOTION EOR REHEARING.
In, deciding that under the evidence adduced upon tire trial now under review the plaintiff was not entitled to recover, this court did not overlook its former ruling in the same case (20 Ga. App. 549, 93 S.E. 169" court="Ga. Ct. App." date_filed="1917-07-23" href="https://app.midpage.ai/document/southern-cotton-oil-co-v-shields-5609883?utm_source=webapp" opinion_id="5609883">93 S. E. 169), that the plaintiff’s petition was not subject to demurrer. That ruling, of course, became the law of the case, and, as such, is binding upon this court. However, the evidence'upon the subsequent trial did not affirmatively establish all the material allegations of fact set forth in the petition. The petition and the proof showed that the plaintiff’s injuries were caused by a lever being knocked over upon his arm on September 6, 1915; and paragraph 7 of the petition is as follows: "(7) Petitioner further avers that on or about the 4th day of September, 1915, the said Southern Cotton Oil Company placed a new lever into the 'cake-former’ which controlled the steam, and that petitioner stated to the superintendent or vice-principal that said lever was too long, whereupon the superintendent who was vice-principal of the Southern Cotton Oil Company [said] to petitioner that [he] knew said lever was too long, that he would have it cut off, and commanded petitioner to work with said lever until it was cut, but that the said lever was not cut off, and the same being so long made it easily touched and knocked up, thereby turning on the steam into the 'cake-former;’ this being the lever which was knocked up by the 'charger’ which caused the above injury in the manner and form
Rehearing denied.
Dissenting Opinion
dissenting.
In the judgment of reversal I concurred dubitante. On motion for rehearing the cases of Ga. Ry. & M. Co. v. Norris, 135 Ga. 838 (70 S. E, 793), A. & W. P. R, Co. v. Hudson, 123 Ga. 108 (51 S.E. 29" court="Ga." date_filed="1905-05-15" href="https://app.midpage.ai/document/atlanta--west-point-railroad-v-hudson-5574295?utm_source=webapp" opinion_id="5574295">51 S. E. 29), Loveless v. Standard Gold Mining Co., 116 Ga. 427 (42 S.E. 741" court="Ga." date_filed="1902-10-30" href="https://app.midpage.ai/document/tilley-v-mcjunkin-5572057?utm_source=webapp" opinion_id="5572057">42 S. E. 741, 59 L. R. A. 596), and Mitchell y. Schofield’s Sons Co., supra, were brought to my attention. After a consideration of the same I am of the opinion that the questions of negligence were, under the evidence, matters entirely for the jury. I think a rehearing should be granted, and that the judgment should be affirmed instead of reversed.